The Issue Whether Petitioner's request that she be reissued a medical technologist license without taking an examination should be approved.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this proceeding, Petitioner, Norma Howell, seeks to have her medical technologist license reactivated after it was rendered "null" by operation of law on June 30, 1996. A Notice of Intent to Deny Application for Licensure was entered by respondent, Board of Clinical Laboratory Personnel (Board), on March 21, 1997. Because Petitioner requested that the Board grant a variance or waiver of the rule requiring her to take an examination in order to be relicensed, the Board reconsidered the matter at its April 3, 1997, meeting. On April 11, 1997, the Board entered its Notice of Intent to Deny Variance or Waiver on the ground Petitioner had not demonstrated that she would suffer a substantial hardship or that the application of the rule would affect her in a manner significantly different from other applicants for licensure. On May 9, 1997, Petitioner filed a request for a hearing in which she contended that the statute relied upon by the Board for denying her request "did not apply to her case" and that the Board "did not comply with the 90-day notification requirement of the statute which it relied upon to nullify her license." Petitioner has been practicing in the field of medical technology for some thirty years and she has practiced in Florida for at least nine years. Until this controversy arose, she held medical technologist supervisor license number JC-0026722. Prior to July 1, 1994, medical technogist licenses were subject to the regulatory authority of the former Department of Health and Rehabilitative Services (HRS). At that time, licenses were issued for two-year periods, and if not renewed, they "automatically" reverted to an inactive status. Section 483.819, Florida Statutes (1993), provided that if a license was inactive for less than one year, it could be reactivated by payment of a late renewal penalty. If the license was inactive for more than one year but less than five, it could be reactivated "upon application" to HRS and proof that the licensee had completed 15 hours of continuing education requirements for each year the license was inactive, but not more than a total of 65 hours. If a license was inactive for more than five years, it was automatically suspended, but one year prior to the date the suspension took effect, HRS was required to give written notice to the licensee. Once suspended, a license could not be reactivated unless a licensee met all "requirements for reinstatement." Among other things, HRS possessed the discretionary authority to require reexamination before reinstatement. Effective July 1, 1994, Section 483.819, Florida Statutes (1993), was repealed, and regulatory authority over medical technologist licensees was transferred from HRS to the Department of Business and Professional Regulation (DBPR). In addition, a new Section 455.271, Florida Statutes (Supp. 1994), was created to provide new requirements relative to the inactive and delinquent status of all professional licenses, including those for medical technologists. Section (5) provided that the "[f]ailure of a licensee to renew before the license expires shall cause the license to become delinquent in the license cycle following expiration." Section (6) provided that: a delinquent status licensee must affirmatively apply with a complete application, as defined by rule of the board, or the department when there is no board, for active or inactive status during the licensure cycle in which a licensee becomes delinquent. Failure by a delinquent status licensee to become active or inactive before the expiration of the current licensure cycle shall render the license null without any further action by the board or the department. (Emphasis added) The same subsection provided that once a license was rendered "null," any subsequent licensure "shall be as a result of applying for and meeting all requirements imposed on an applicant for new licensure." In other words, a licensee would have to retake the examination in order to be relicensed. As a safeguard to automatic cancellation of a delinquent license, however, new Section 455.273 (Supp. 1994), provided that "[a]t least 90 days before the end of a licensure cycle, the Department of Business and Professional Regulation shall . . . [f]orward a notice of pending cancellation of licensure to a delinquent status licensee at the licensee's last known address of record with the department." Against this statutory backdrop, Petitioner's license was due for renewal on June 30, 1994, when her latest biennial cycle ended. Because the license was not renewed, it became delinquent under the terms of Section 455.271(5). Therefore, it was incumbent on Petitioner to seek active or inactive status before the end of the next licensure cycle, or by June 30, 1996, or have her license rendered "null" by operation of law. It is noted that Petitioner was one of approximately 2,000 licensees whose license was not renewed at the end of the June 30, 1994, licensure cycle and thus became delinquent. In January 1992 Petitioner relocated from Florida to Mississippi in order to care for her elderly mother. She continued working as a medical technologist in Mississippi. When her license came up for renewal on June 30, 1994, Petitioner had no need for an active Florida license and therefore did not renew it. She assumed, however, that she could keep it in an inactive, delinquent status for up to five years under the terms of Section 483.819, Florida Statutes (1993). Petitioner acknowledges that she became aware of the new law in general terms, but not in specifics, in June 1995. This occurred when the Board her sent a Notice to Delinquent and Inactive Licensees advising that changes in the law had been made and that "the changes affected the manner in which licensees regulated under Chapter 483, F.S., clinical laboratory personnel, may reactivate a license or request to be placed on inactive status." The notice further provided that if Petitioner "would like to receive an application to reactivate (her) license or to be placed on inactive status," she should fill out a form at the bottom of the Notice and return it to the Board. There was no mention in the Notice that Petitioner's license would become "null" by operation of law if she did not take affirmative action by June 30, 1996. In response to the Notice, on June 16, 1995, Petitioner filed the Notice and form with the Board requesting that she be sent an application to place her license in an inactive status. The Board says that the Notice described in finding of fact 8 was a part of a packet of information attached to a form letter sent to all delinquent status licensees on May 27, 1995. According to a Board representative, the form letter contained an admonition to licensees that unless they reactivated their licenses by June 30, 1996, their licenses would be null and void. However, the actual contents of the letter are not of record. This is because the letter was not identified by Respondent's counsel as an exhibit in the prehearing stipulation; it was not a part of the Board's official file pertaining to Petitioner; opposing counsel had no notice that such a letter existed or would be used as evidence at hearing; and thus it was not received in evidence. Even though the form letter was sent some thirteen months before the licensure cycle ended, the Board takes the position that it constituted the statutory notice of pending cancellation required by Section 455.273(1)(b) to be sent to each delinquent status licensee "at least 90 days before the end of the licensure cycle." Board records do not establish that Petitioner received the form letter, and she denies having received any statutory notice of pending cancellation. Approximately two thousand (out of eighteen thousand) licenses under the Board's jurisdiction became delinquent because they were not renewed by June 30, 1994. While the number that were automatically cancelled on June 30, 1996, by operation of law is not of record, only four licensees, including Petitioner, have asked that their licenses be reinstated because of cancellation. Given this unusual circumstance, it is reasonable to accept Petitioner's testimony that she did not receive a notice of cancellation as required by law. This omission by the Board, while unintentional, constituted a material error in procedure which occasioned serious prejudice to Petitioner. In addition to filing the form on June 16, 1995, Petitioner also sent a letter to the Board on June 23, 1995. The letter stated, in pertinent part, as follows: Please place my Medical Technologist Supervisor's Lic # JC 0026722 on inactive status until further notice. I am presently residing in Mississippi. Enclosed is the required fee of $25.00 plus copies of Continuing Education certificates; 39 hrs. The letter provided her most current address in Mississippi, and it contained a postscript that "[i]f an additional form is necessary please advise." By letter dated June 28, 1995, the Board acknowledged receiving Petitioner's letter and check. In the letter, a Board representative advised petitioner that her "request for inactivation of licensure . . . cannot be processed" because she had sent an incorrect fee and a formal application had to be completed. The letter indicated that an application to reactivate her license was also enclosed. Apparently in response to the June 16, 1995, request for an application form, on July 14, 1995, the Board sent Petitioner another reactivation application. Because Petitioner did not want to reactivate her license, but she only wanted to place her license in an inactive status, she did not complete the application at that time. Again, however, she assumed that her license could remain inactive for up to five years after June 30, 1994, without placing it in jeopardy. Petitioner received no further advice, oral or written, from the Board until after she filed a Reactivation Application with the Board on December 19, 1996, together with a $470.00 fee and proof of 39 hours of continuing education. She did so at that time since she had been offered a job in Florida and intended to relocate to this state. On December 20, 1996, Petitioner and the Board's administrator spoke by telephone regarding Petitioner's application. Among other things, Petitioner was told that her license was null and void by operation of law since she failed to reactivate her license by June 30, 1996. On December 27, 1996, the administrator sent Petitioner a letter in which she reconfirmed this fact, but advised that the matter would be taken up by the Board. Petitioner asked that an exception be made since she lived out-of-state and had never received notice of cancellation. The Board later denied her request. Rule 59O-7.001(2), Florida Administrative Code, prescribes the examination requirements for licensure as a supervisor. The purpose of the underlying statute is to ensure minimum competency of all persons engaging in the profession. Petitioner has satisfied this purpose by having successfully practiced in the field for some thirty years and being certified in five specialties. In addition, during the period of time in which her license was delinquent, she successfully completed all necessary continuing education courses. If the request for a variance or waiver is denied, Petitioner will suffer economic hardship since she will be unable to practice her profession in Florida until she passes an examination. More specifically, she will be unable to accept a pending job offer as a medical technologist supervisor. Unusual circumstances are present here. Of the two thousand licensees in a delinquent status after June 30, 1994, only Petitioner has contended that she failed to receive the statutory notice of cancellation. To her detriment, the license was subsequently cancelled by operation of law. The literal application of the rule requiring an examination would unintentionally penalize Petitioner's good faith efforts to reactivate her license. Because it is presumed that all other licensees in a delinquent status received notice of pending cancellation, Petitioner will be treated in a manner significantly different from the way the rule affects other similarly situated persons seeking licensure. That is to say, any other persons requesting relief from the rule because of automatic cancellation on June 30, 1996, would have been on notice that unless they renewed their license by that date, they would be subject to the terms of the rule. Petitioner had no such notice. Therefore, fairness requires an exception. Petitioner has paid all filing fees and completed all continuing education courses necessary for reactivation. If her request is ultimately denied, she is entitled to a refund of her fees.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board of Clinical Laboratory Personnel enter a final order granting Petitioner's request for a waiver or variance from Rule 59O-7.001(2), Florida Administrative Code, and reinstating her license number JC-0026722. DONE AND ENTERED this 31st day of July, 1997, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675, SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 1997. COPIES FURNISHED: Eric G. Walker, Executive Director Board of Clinical Laboratory Personnel 1940 North Monroe Street Tallahassee, Florida 32399-2200 Lynda L. Goodgame, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Michelle L. Proctor, Esquire 7637 State Road 52 Bayonet Point, Florida 34667 Edwin A. Bayo, Esquire Department of Legal Affairs The Capitol Tallahassee, Florida 32399-1050
The Issue Whether disciplinary action should be taken against Respondent's license to practice as a physician.
Findings Of Fact The Agency is that state agency charged with regulating the practice of medicine pursuant to Section 20.42, Florida Statutes; Chapter 455, Florida Statutes; and Chapter 458, Florida Statutes. Respondent is a physician licensed to practice medicine in the State of Florida. Respondent holds license number ME 0055126. The State of Michigan Department of Commerce Board of Medicine is the licensing authority for the State of Michigan. On or about April 18, 1994, the State of Michigan Board of Medicine issued a letter of reprimand to Respondent, and ordered that Respondent pay a fine in the amount of $1,500.00 within ninety days of the Order for prescribing anabolic steroids for the purpose of improving body-building or weightlifting. Respondent is guilty of having action taken against his license to practice medicine by the licensing authority of the State of Michigan. The State of Michigan notified the agency of its action against the Respondent. A search of the agency's records revealed he had not notified the agency of the action taken by Michigan against him. On or about September 5, 1995, an attempt was made to notify Respondent about the information the agency had received. This letter was subsequently returned unclaimed with a forwarding address in Dallas, Texas. On or about November 9, 1995, a second attempt was made to notify Respondent of the complaint. The letter was sent to Post Office Box 12131, Dallas, Texas 75225, which is the Respondent's current address.1 The Respondent returned the election of rights form and a letter requesting a formal hearing. Respondent failed to notify the Florida Board of Medicine within thirty days of the action taken against his medical license in Michigan. The Respondent failed to notify the Board of his change of address. The Respondent was preciously disciplined by the Board of Medicine by Final Order number AHCA96-00464. The Respondent's license was suspended until he appeared and demonstrated that he could practice with skill and safety.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: That Respondent the Agency enter its Final Order finding the violation of Section 458.331(1)(b), Section 458.331(x) and 458.331(1)(kk) and, Florida Statutes, and revoking the Respondent's license to practice medicine in Florida. DONE and ENTERED this 28th day of February, 1997, in Tallahassee, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 28th day of February, 1997.
The Issue The issue is whether Petitioner's application for reinstatement of his license as a general contractor should be granted or denied.
Findings Of Fact Stipulated Facts Petitioner was previously issued Certified General Contractor's License number CGC42026. His license was active in the 2004 renewal cycle, became delinquent-active in the 2006 renewal cycle, and null and void at the start of the 2008 renewal cycle. Due to an executive order of the Governor relating to tropical storms, Petitioner's license became null and void on October 2, 2008. Petitioner was required to pay a renewal fee and report continuing education credit hours in order to renew his license prior to the start of the 2008 renewal cycle to avoid the license becoming null and void. Petitioner timely paid the renewal fee ($518) to renew his license. Petitioner completed and reported two continuing education hours for the reporting period ending August 31, 2008. Petitioner completed and reported 44 continuing education hours through July 5, 2011, and is currently up to date with all of his required continuing education credit hours. While Petitioner completed and reported a portion of his required continuing education hours, he did not complete and report all of his required continuing education hours to renew his license during the 2008 renewal period. This was due to financial difficulty and an inability to pay for continuing education credit hours. At present, the total hours Petitioner completed and reported would fulfill his 2006, 2008, and 2010 continuing education requirements. A license becomes null and void if it is not renewed within two years of the renewal date. Petitioner filed his application pursuant to section 455.271(6), Florida Statutes, to reinstate his Certified General Contractor's License number CGC42026. The Department entered its Notice of Intent to Deny the application. Following the Board's issuance of a Corrected Notice of Intent to Deny, Petitioner filed an Amended Petition for Formal Administrative Proceedings. The Corrected Notice stated that Petitioner's license expired due to non receipt of continuing education credits for renewal and, following the delinquency period, became null and void. The reasons for the denial set forth in the corrected notice were as follows: Applicant failed to present evidence of a good faith effort to comply with the license renewal statutes and rules and failed to present evidence that rises to the level of illness or unusual hardship that would justify the failure to renew the license. The Board approved the application of Alberto Munoz to reinstate his Certified Pool/Spa Contractor's License pursuant to section 455.271(6) at the July 14, 2011, meeting of the Board. The application filed by Mr. Munoz stated that his license had gone null and void because he failed to pay the required license renewal fee due to undue due to undue financial hardship. The Board approved the application of Edwin W. Steffen to reinstate his Certified Plumbing Contractor's License pursuant to section 455.271(6) at the August 11, 2011, meeting of the Board. The application filed by Mr. Steffen stated that his license had gone null and void because his "two cycle inactive status expired in August 2010." Further, Mr. Steffen cited financial difficulties following the "2009 market crash that hurt [him] significantly," leading him to "go back into the workforce." Neither the Department nor the Board has adopted any rules pertaining to applications to reinstate licensees pursuant to section 455.271(6) other than a Department approved application form. Facts based upon evidence of record Petitioner's Certified General Contractor's (CGC) license was active during the 2004 renewal cycle, and became delinquent-active in the 2006 renewal cycle. Petitioner was required to pay a renewal fee and report continuing education credit hours in order to renew his CGC license prior to the start of the 2008 renewal cycle to avoid the license becoming null and void. During the 2006 and 2008 renewal cycles, Petitioner worked as a construction foreman in remote encampments in Puerto Rico and in the U.S. Virgin Islands. Although these jobs were full-time, he earned very little money on these projects. During this time, Petitioner's wife and three children remained at home in Puerto Rico. He earned only enough during this time for his family to subsist. Although working in remote locations in Puerto Rico and in the U.S. Virgin Islands during this time, Petitioner insists that he always intended to return to Florida and was actively seeking work here. He did not finish working in the remote encampments until 2009. While working in the remote locations, he had no access to the Internet and relied on phone calls to friends in an attempt to find appropriate yet affordable continuing education courses. The courses he learned of were expensive at a time when he was earning little money and trying to support his family. Petitioner's testimony in this regard is deemed credible and is accepted as fact. When Petitioner submitted his application for reinstatement of his license, he included a money order for $100 as required. During this period of time, Petitioner paid his renewal fee and completed two continuing education credit hours, but was unable to afford the required number of authorized continuing education credits, and was not in a place from which he could travel to attend live courses. Petitioner made a good-faith effort to comply with the license renewal statutes and rules. He paid the renewal fee and has since completed the necessary continuing education requirements.
Recommendation Upon consideration of the facts found and the conclusions of law reached, it is RECOMMENDED: That the Construction Industry Licensing Board enter a final order granting Petitioner's application for reinstatement of his license as a general contractor. DONE AND ENTERED this 13th day of January, 2012, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 13th day of January, 2012.
The Issue The issues in the case are whether the allegations of the Administrative Complaint are correct, and, if so, what penalty should be imposed.
Findings Of Fact The Petitioner is the State of Florida agency responsible for regulating the practice of medicine pursuant to Section 20.43 and Chapters 456 and 458, Florida Statutes (2004). As set forth herein, the Respondent was a physician licensed to practice medicine in the area of critical need (ACN), and holding Florida license number ACN144. A physician holding an ACN licensed must practice in a facility that meets certain statutory requirements or which is designated by the State Health Officer as an entity providing health care to an indigent population, and must submit documentation establishing employment at an ACN-designated facility for licensing. The secretary of the Florida Department of Health is the state health officer. Prior to the events at issue in this proceeding, the Respondent practiced medicine as medical director at "Mariner's Medical Center" (Mariner's), which closed in October 2002. Mariner's was an approved ACN facility. After the closure of the Mariner's facility, the Respondent accepted a position in Miami at Jackson Memorial Hospital (Jackson) in October 2002; however, prior to commencing his employment, circumstances at Jackson changed and the Respondent's position at Jackson was eliminated. The Respondent's employment contract at Jackson was terminated and, he received payment under the terms of the agreement. The Respondent subsequently returned to central Florida, apparently intent on opening a medical practice. By letter to "Sandy Condo," from the Respondent dated July 17, 2003, the Respondent sought responsibility for Mariner's medical records. The letter did not further identify Sandy Condo, but the address was that of the Petitioner. The letter, which identified the practice as an entity called "Boriquen Healthcare Plus," stated as follows: This is to certify my desire for the responsibility of the medical records of Mariner's Medical Center, where I was the Medical Director until October 24, 2002. I am willing to be the custodian of these medical records and I would like the computer data base (sic) be transferred to my care. I intend to follow up on the care of all these patients. In August 2003, the Respondent opened a private practice at 931 West Oak Street, Suite 103, Kissimmee, Florida, and began treating patients. The practice was initially named "Boriquen Health Care" (reflecting the historical name for Puerto Rico), but within a few days of opening was renamed "Physician's Health Care Plus." Towards the end of August 2003, the Respondent made efforts to acquire the ACN designation for his practice. Materials seeking the designation were submitted by Glenda E. Gonzalez-Cortes, M.D., the Medical Director for Physician's Healthcare Plus, to the Board of Medicine (Board). Although the materials were received by the Board, the Board was not the agency responsible for ACN facility designations. It is unclear whether the Board forwarded the materials to the appropriate office within the Department of Health for processing. It is likewise unclear whether the Respondent understood the distinction between the "Department of Health" and the "Department of Health, Board of Medicine." In any event, the fact that materials were submitted seeking ACN designation for the practice clearly establishes that the Respondent was aware that the practice was not designated as an ACN facility. A memo dated October 2, 2003, from Melinda K. Gray, Regulatory Supervisor of the Board of Medicine, to Larry McPherson, Jr., Executive Director of the Board of Medicine, stated as follows: Attached please find a letter dated July 17, 2003, from Dr. Jose A. Gutierrez, expressing his desire to take responsibility for the medical records of Mariner's Medical Center. Based on my conversation today with Dr. Gutierrez, he again expressed his desire to take responsibility of the medical records and to follow-up on the care of these patients who received medical treatment at Mariner's Medical Center Please be advised of the following: Mariner's Medical Center is closed. Mariner's Medical Center is owned by a non-health care licensee. The medical records located at Mariner's Medical Center are currently inaccessible and are being maintained by a leasing company. Dr. Gutierrez or the patients do not have access to these medical records. Dr. Gutierrez is willing to take custody of these records, which are located on a computer hard drive, and paper records. The hard drive is necessary to be able to link between the patient's name and patient identification numbers. Dr. Gutierrez indicated he intends to follow the care of these patients. Dr. Gutierrez holds a clear active medical license in the area of critical need in the state of Florida and reflects no prior discipline. Dr. Gutierrez indicated that either the leasing company or the owner of Mariner's Medical Center would not release these records to him until the Board of Medicine reviews his request to take custody of the records and the Board grants his request. Dr. Gutierrez agrees, accepts and acknowledges the responsibility to maintain the medical records and follow-up patient care of the patients who received medical treatment at Mariner's Medical Center, beginning July 17, 2003. By letter dated October 7, 2003, from the executive director of the Board of Medicine, the custodial request was approved. The letter stated as follows: It is my pleasure to advise you that, pursuant to your request, the Board of Medicine voted on October 4, 2003, to permanently appoint you as the Custodian of Records for the former Mariner's Medical Center. This appointment is pursuant to Section 456.057(19), Florida Statutes, which authorizes the Board of Medicine to permanently appoint a person as a custodian of medical records in the event of the death of a practitioner, the mental or physical incapacitation of the practitioner, or the abandonment of medical records by a practitioner. The custodian appointed shall comply with all provisions of this section, including the release of patient records. The Respondent suggests that the release of the records to his custody constituted approval of his July 17 request to provide treatment; however, the October 7 letter clearly did not address issues regarding provision of patient care. The statutory citation referenced in the letter addresses only custody, maintenance, and use of medical records. There is no credible evidence that the ongoing dialogue between the Respondent and representatives of the Petitioner constituted approval of the Respondent's request to provide medical care to Mariner's patients. Further, there is no evidence that the Respondent's practice at "Boriquen Health Care" or "Physician's Health Care Plus" was limited solely to patients who had received care at Mariner's. By letter dated November 25, 2003, to Kimberly Rivers, Regulatory Supervisor for the Department of Health, Board of Medicine, the Respondent referenced a conversation of November 21, 2003, wherein a discussion allegedly occurred regarding the requirements for ACN designation. The letter clearly establishes that the Respondent was aware that the practice had not yet received the ACN designation. The Respondent's ACN license was due to expire on January 31, 2004. On January 30, 2004, the Respondent submitted his ACN re-licensure application. Because he was not practicing at an ACN facility as of the expiration date, the ACN license was not automatically renewed. By letter dated February 5, 2004, the Petitioner notified the Respondent that his ACN license renewal could not be completed until submission of a letter from "your employer in an area of critical need." The letter referenced an enclosure that allegedly identified the ACN-designated facilities. An email dated February 16, 2004, from Joanne Davis-Trexler to the Respondent references a prior conversation and advises that the Respondent's license can not be renewed without "proof of employment in a facility approved as an Area of Critical Need." The email further advises that the Respondent's license is "delinquent" and that "practice with a delinquent license is a violation of Florida Statutes." An exchange of email between the parties indicates that subsequent to February 16, 2004, additional information, including Medicaid/Medicare billing records, was submitted by the Respondent to the Petitioner to document the patient population being served by the Respondent. On March 8, 2004, the secretary of the Department of Health, acting as the state health officer, approved Physician's Health Care Plus as an ACN-designated facility based on the staff's recommendation. On March 24, 2004, following the facility's ACN designation, the Respondent's ACN licensure was renewed. Between August 2003 (when the Respondent's practice began operating absent the ACN designation) and March 8, 2004, the Respondent failed to comply with licensure requirements limiting his practice to ACN-designated facilities. Between February 1 and March 24, 2004, the Respondent failed to comply with requirements related to timely renewal of his ACN licensure. The Respondent has moved to Texas, is no longer practicing medicine in Florida, and has placed his Florida license into a "retired" status.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Medicine, enter a final order issuing a letter of concern to the Respondent related to the licensing violations cited herein. DONE AND ENTERED this 12th day of May, 2006, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of May, 2006. COPIES FURNISHED: Patrick L. Butler, Esquire Katharine B. Heyward, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 George F. Indest, III, Esquire Joanne Kenna, Esquire The Health Law Firm 220 East Central Parkway, Suite 2030 Altamonte Springs, Florida 32701 Timothy M. Cerio, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 Larry McPherson, Executive Director Board of Medicine Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701
Findings Of Fact At all times material hereto, Respondent has been licensed in the State of Florida as a life and health insurance agent. His licensure as a life and variable annuity contracts agent occurred on April 5, 1993. On September 9, 1994, Respondent pled nolo contendere to criminal charges pending before the Circuit Court of the Seventeenth Judicial Circuit, in and for Broward County, Florida. The charges were third degree grand theft, a felony, and practicing law while his license was suspended, a misdemeanor. Upon entry of his plea, adjudication was withheld, and Respondent was placed on probation for two years and ordered to make restitution in the amount of $400. Respondent did not notify Petitioner in writing within 30 days after pleading nolo contendere to that felony. Respondent's plea and criminal charges related to a fee in the amount of $l,000 which Respondent collected from a client to perform legal services at a time when Respondent's license to practice law was suspended. Although Respondent refunded $600 of that fee to the client, Respondent determined that the client had received $400 worth of services and refused to refund that amount until after the client filed litigation and obtained a civil judgment against Respondent. On or about October 20, 1995, the Florida Department of Corrections filed with the Broward County Circuit Court an affidavit alleging that Respondent had violated the Circuit Court's Order of Probation in a number of different ways. Based upon that affidavit, the Circuit Court issued a Warrant for Respondent's arrest on October 24, 1995. On January 11, 1996, Respondent was disbarred, effective immediately, by the Supreme Court of Florida. At the time of the final hearing in this cause, Respondent was not actively engaged in the insurance business. Rather, Respondent had been employed at the Miami Market for approximately 1-1 years, taking inventory and supervising crews.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding Respondent guilty of the allegations contained in the First Amended Administrative Complaint filed against him and revoking his licenses and his eligibility for licensure as an insurance agent. DONE and ENTERED this 5th day of March, 1996, at Tallahassee, Leon County, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of March, 1996. APPENDIX TO RECOMMENDED DOAH CASE NO. 95-4700 Petitioner's proposed findings of fact numbered 1, 4-12, and 15 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 2 has been rejected as not constituting a finding of fact but rather as constituting a conclusion of law. Petitioner's proposed finding of fact numbered 3 has been rejected as not being supported by the weight of the competent evidence in this cause. Petitioner's proposed finding of fact numbered 13 has been rejected as being irrelevant to the issues under consideration in this cause. Petitioner's proposed finding of fact numbered 14 has been rejected as being subordinate to the issues herein. COPIES FURNISHED: Ross S. Burnaman, Esquire Department of Insurance Division of Legal Services 200 East Gaines Street Tallahassee, Florida 32399-0333 Mr. David Felix Monaco Apartment 207E 7610 Stirling Road Hollywood, Florida 33024 Bill Nelson State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, Florida 32399-0300
Findings Of Fact Petitioner graduated from the New York University School of Medicine in June 1964 with the degree of Doctor of Medicine. During the period 1964 to 1967, he interned and practiced preventive medicine in the United States Army. From 1967 until 1971, Petitioner was a resident in public health with the New Jersey State Department of Health. He received a Master's Degree in Public Medicine from Columbia University in 1970, and was certified by the American Board of Preventive Medicine in Public Health in 1971. During the period 1971- 1973, he served as the medical director of the Trenton Neighborhood Family Health Center, in Trenton, New Jersey. He was thereafter employed as an Assistant Commissioner with the New Jersey State Department of Health from 1973 to 1980. Between 1978 and 1980, Petitioner served on weekends and two weeks summer duty with the National Guard, performing routine medical services for Guard personnel. In his position as an Assistant Commissioner for the New Jersey State Department of Health, Petitioner was involved in administrative medicine and did not have direct patient care responsibilities. (Testimony of Petitioner, Exhibit 1) On February 20, 1980, the Hillsborough County Board of County Commissioners appointed Petitioner to the position of Director of the Hillsborough County Health Department, effective May 1, 1980. By letter of March 5, 1980, Petitioner advised the New Jersey State Commissioner of Health that he had accepted the Hillsborough County position and that he planned to commence employment in that position on May 1, 1980. Petitioner thereafter filed an application for a limited license to practice medicine which was received by Respondent on April 1, 1980. The application reflected his "Date of retirement from active practice" as April 25, 1980. Attached to the application were various letters and documentation, including a copy of Petitioner's March 5, 1980 letter to the New Jersey State Commissioner of Health advising of his acceptance of the Hillsborough County position. In Petitioner's letter of March 26, 1980, transmitting his application for limited licensure, he characterized the March 5th letter as "Proof of retirement and residence in Florida" and as "My letter of resignation." Petitioner also attached letters of recommendation from a New Jersey physician and the New Jersey State Commissioner of Health, and a letter from the Mercer County (New Jersey) Medical Society attesting to his good standing in that organization, as well as the state and national medical associations. He also enclosed a copy of his letter of appointment from the Chairman of the Hillsborough County Board of County Commissioners, and a letter from the District VI Administrator of the Department of Health and Rehabilitative Services, dated February 27, 1980, advising the Board of Medical Examiners as to the Hillsborough County appointment and requesting that Petitioner be assisted with appropriate licensure. After receipt of Petitioner's application, Respondent determined that the application was incomplete and asked him to provide an affidavit that he had retired from the active practice of medicine and proof of residence in Florida. On May 7, 1980, Respondent received Petitioner's affidvait that he had retired from the licensed practice of medicine in New Jersey and was currently residing in Tampa, Florida. (Exhibit 1) Petitioner terminated his position with the State of New Jersey in April 1980, and assumed his new duties as Hillsborough County Health Director on May 1, 1980. (Testimony of Petitioner, Exhibit 1). At a meeting of the State Board of Medical Examiners on June 7, 1980, Petitioner's application for a limited license was denied for the stated reason that he had not retired from the practice of medicine as required by statute. On June 26, 1980, the Board issued an Order confirming its decision and advising Petitioner of his Chapter 120 right to an Administrative Hearing. (Exhibits 2- 3, 5) At the time Petitioner filed his application, Respondent's Rule 21M- 25.01(1)(b), F.A.C., provided pertinently as follows: 21M-25.01 Applications; Limited License. Each applicant for limited licensure pursuant to Section 458.317, Florida Statutes, shall file an application with the Department in an affidavit form as prescribed by the Department attesting to: * * * (b) Has, prior to his application for limited licensure, been retired from medical practice, and that he was in good standing in the state of his licensure at the time of his retirement. At the June 7, 1980 meeting of the Board of Medical Examiners, the Board considered a proposed amendment to Rule 21M-25.01(1)(b) that had been approved "in concept" as a Board policy at its last Board meeting, which would further define the term "retirement" within the meaning of Section 458.317, Florida Statutes, to permit persons who had retired from practice in another state, although not actually having retired from the practice of medicine, to obtain limited licensure. The proposed rule was not adopted by the Board, but at a meeting held on September 13, 1980, the Board approved an amendment to the rule which was promulgated on October 23, 1980. It provided as follows: 21M-25. 01 Applications; Limited License (1) No Change. * * * (b) Has, prior to his application for limited licensure, been retired from medical practice, and that he was in good standing in the state of his licensure at the time of his retirement. Retired as used herein means previously separated or withdrawn from the practice of medicine as distinguished from a relocation of the applicant's medical practice to a different geographic area. (Exhibits 2-8) Prior to accepting employment in Hillsborough County, Petitioner discussed his eligibility with various individuals whom he supposed to be knowledgeable of the state license laws, and none indicated that he would have any difficulty in obtaining a license. Petitioner testified at the hearing that if he had known the Board's position on limited licensure requirements, he doubted if he would have accepted the position of County Health Director. Although Petitioner still holds his New Jersey medical license, he is no longer a member of the state medical society. He considers that he "retired" from medical practice dealing with patients when he left his position with the Trenton Neighborhood Family Health Center in 1973, and that he "severed ties" with the New Jersey medical profession when he left his position as an assistant commissioner with the New Jersey State Department of Health in April 1980. He plans to obtain full licensure in Florida in the future, but desires a limited license at this time in order that he can become a full member of the local medical society, and therefore be in a position to work more closely with his peers. (Testimony of Petitioner).
Recommendation That Petitioner's application be DENIED. DONE and ENTERED this 10th day of March, 1981, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of March, 1981. COPIES FURNISHED: Kenneth E. Apgar, Esquire de la Parte and Butler, P.A. 403 North Morgan Street, Suite 102 Tampa, Florida 33602 William Furlough, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Christopher D. Rolle Assistant Attorney General Department of Legal Affairs The Capitol Tallahassee, Florida 32301
The Issue Whether Petitioner should be licensed as a life, variable annuity and health agent by the Department of Financial Services?
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of fact are made: Petitioner is 51 years old; has Associate of Arts degrees from Seminole Community College, Sanford, Florida, and Davenport University, Grand Rapids, Michigan; will soon acquire a bachelor of business administration degree from Belhaven College; and is applying for a doctoral program at the University of Central Florida. Petitioner holds a real estate sales associate license issued by the Department of Business and Professional Regulation, Division of Real Estate. The effective date of the license is September 29, 2003; it will expire on September 30, 2005. On November 28, 2001, Petitioner applied to Respondent for a license classified as a "life and variable annuity and health insurance agent." One of the screening questions on the license application was the following: "[H]ave you ever had any professional license subjected to any of the following actions by any state agency or public authority in any jurisdiction?" In response, Petitioner circled "Yes." The screening question was then followed by the following "actions": suspension, revocation, placed on probation, administrative fine or penalty levied, cease and desist order entered. In response, Petitioner circled "suspension." On July 17, 1997, a Final Order was entered in Department of Business and Professional Regulation, Division of Real Estate v. David Nelson Weiker, Case No. 95-85173, which reads, in part, as follows: . . . the Commission finds the Respondent guilty of violating ss 475.25(1)(c) and 475.42(1)(j), Florida Statutes, as charged in the Administrative Complaint. Therefore the Commission ORDERS that the license of David Nelson Weiker be suspended until the liens are removed. At the conclusion of the period of suspension, the Respondent is directed to contact the Records Section of the Division of Real Estate . . . to secure proper forms for reinstatement of Respondent's suspended license. The Commission further ORDERS that the Respondent pay a $1000 administrative fine and investigative costs of $768 within 30 days of the filing date of this order or the Respondent's license shall be suspended until such time as the fine and costs are paid in full. In Weiker, Case No. 95-85173, Petitioner, David N. Weiker, Sr., initially requested a formal hearing, then failed to respond to a request for admissions. As a result, he admitted being a licensed real estate salesperson who, as an employee of a builder, Mercedes Homes, Inc., filed 14 liens in a total amount of $23,301 against homes owned by Mercedes Homes, Inc., in an attempt to collect sales commissions he deemed he was owed. The administrative fine of $1,000, in Weiker, Case No. 95-85173, was paid by a check dated August 5, 1998, drawn on the account of David S. Piercefield, P.A. On August 13, 1998, an Amended Final Order was entered in Department of Business and Professional Regulation, Division of Real Estate v. David Nelson Weiker, Case No. 96-83238 (DOAH Case No. 97-4742), which reads, in part, as follows: . . . the Commission finds the Respondent guilty of violating s.475.25(1)(b) and (c), Florida Statutes, as charged in the Administrative Complaint. The Florida Real Estate Commission therefore ORDERS that the Respondent pay a $1,000.00 administrative fine. . . . Therefore the Commission ORDERS that the Respondent be placed on probation for a period of ninety days . . . In Weiker, Case No. 96-83238 (DOAH Case No. 97-4742), the Real Estate Commission adopted the Recommended Order of the Administrative Law Judge. In that Recommended Order, the Administrative Law Judge found that "he [Weiker] furthered a scheme of misrepresentation, false promises, and dishonest dealing." The administrative fine of $1,000, in Weiker, Case No. 96-83238 (DOAH Case No. 97-4742), was paid by a SouthTrust Bank check dated October 14, 2003. The remitter was Irene L. Weiker. On several occasions, in correspondence with representatives of Respondent, and while testifying at the final hearing, Petitioner testified that his real estate license had not been suspended. He also maintained, without substantive evidence or reasonable explanation, that the two administrative fines had been paid several times or by the wrong individuals. His attempts to explain the facts and circumstances of the two administrative actions disciplining his real estate license were unreasonable and not credible.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent's decision to deny Petitioner's application for a life, variable annuity and health insurance agent license is well-founded; Petitioner's license application should be denied. DONE AND ENTERED this 22nd day of December, 2003, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 2003. COPIES FURNISHED: R. Terry Butler, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0399 David N. Weiker, Sr. 1506 Elfstone Court Casselberry, Florida 32707 Honorable Tom Gallagher Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Mark Casteel, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300
The Issue Whether Petitioner's certificate of registration as a pain management clinic should be revoked pursuant to section 458.3265, Florida Statutes (2010).1/
Findings Of Fact By stipulation the parties agreed to the following: Unique is a Florida for-profit corporation; Unique is not a pain management clinic. However, Unique is registered as a pain management clinic with the Department; and Ronald and Grace Van Der Juijl are not physicians licensed under chapters 458 or 459, Florida Statutes. Unique is, therefore, not fully owned by a physician licensed under chapters 458 or 459, or a group of physicians, each of whom is licensed under chapter 458 or 459. Section 458.309(4), Florida Statutes (2009), reads, in part, as follows: All privately owned pain-management clinics, facilities, or offices, hereinafter referred to as "clinics," which advertise in any medium for any type of pain-management services, or employ a physician who is primarily engaged in the treatment of pain by prescribing or dispensing controlled substance medications, must register with the department by January 4, 2010, unless that clinic is licensed as a facility pursuant to chapter 395. On January 5, 2010, Unique, pursuant to section 458.309(4), submitted to the Department an application for pain clinic registration. On March 10, 2010, the Department issued to Unique, pain management clinic license no. PMC 681.4/ On October 1, 2010, approximately nine months after becoming effective, section 458.309(4) was repealed. Also on October 1, 2010, section 458.3265 became effective. Section 458.3265(1) provides, in part, as follows: (d) The department shall deny registration to any clinic that is not fully owned by a physician licensed under this chapter or chapter 459 or a group of physicians, each of whom is licensed under this chapter or chapter 459; or that is not a health care clinic licensed under part X of chapter 400. * * * (f) If the department finds that a pain- management clinic does not meet the requirement of paragraph (d), . . . the department shall revoke the certificate of registration previously issued by the department. As determined by rule, the department may grant an exemption to denying a registration or revoking a previously issued registration if more than 10 years have elapsed since adjudication. As used in this subsection, the term "convicted" includes an adjudication of guilt following a plea of guilty or nolo contendere or the forfeiture of a bond when charged with a crime. (Emphasis supplied.) Unique is not a health care clinic licensed under part X of chapter 400.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED that Respondent, Department of Health, enter a final order revoking Petitioner, Unique Health Care Orlando's, license to operate as a pain management clinic. DONE AND ENTERED this 8th day of November, 2011, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of November, 2011.
